K5UZ Message, Jan 12, 2018

Many indeed most of you have read or heard all the commotion and turmoil
over motions before the ARRL Board of Directors and other actions.
Basically, this is an aggressive misinformation campaign initiated by a
few persons. There is a good deal of misinformation about the Articles
of Association and By Laws (AABL), ARRL’s “Code of Conduct” ethical
rules, and the Board’s decision to censure a member.

These individuals obtained a preliminary draft of the AABL motion
material and released it on various reflectors and other outlets as “EC
(Executive Committee) Final Draft of the motion”. This is erroneous.
The AABL motion floating about on certain websites and social media
outlets is the preliminary global redlined draft of the revised omnibus
AABL prepared by the Executive Committee working group and not all the
changes in this redlined copy will be included in the motion(s). Indeed,
the final draft motion looks quite different being in several
parts to help the Board in their deliberations. Hence, the
consternation and angst are based on bad information and is misleading
many with a draft motion that is NOT the final motion or anything close
to it. I have uploaded the FINAL filed draft EC AABL motions on the
Delta Division website at the URL http://www.arrldelta.org/ Click on
the far-right button labeled “EC Articles of Association & By Laws”.
Compare them to the preliminary draft motions; they are vastly
different with the most offensive parts removed.

There is also a motion or a series of motions by another director
proposing that the officers on the Board be allowed to vote. Officer
voting (save for the President in the event of a tie) has never been
allowed and will garner a NO vote from me.

Again, the public criticism of the ARRL Code of Conduct and now the
attack on the AABL motion stems directly from the Board’s decision (by
eleven votes in favor to three opposed, (with one abstention) to censure
Dick Norton, N6AA, for actions that the Board decided violated the Code
of Conduct. That was decided by a significant majority of the Board.
Supporters of Mr. Norton who were unhappy with the Board’s decision have
criticized the process as well as the outcome of the Board’s internal
deliberations. There is more to this than what is being circulated on
the reflectors and blogs right now; however, this is a personnel matter
internal to the board and I cannot comment further as to the details.
Again, this was an eleven to three vote in favor of censure with one
abstention, and that’s not insignificant. I also consider N6AA a
friend and I refuse to publicly discuss any of these details for his
sake.

Further, the detractors in their zealous misinformation campaign are
perpetrating a serious mischaracterization of ARRL’s Code of Conduct.
They have equated it with “censorship” and have referred to it as a “gag
order” or “Cone of Silence” (Sorry Chief!). This is absolutely
inaccurate. Any Director can divulge his vote by simply asking the
Secretary to record it, hence the whole “cone of silence” and gag
order pejoratives are simply disingenuous. The Code of Conduct is a
component of the process of good governance that is or should be used by
a Board of Directors of any nonprofit membership association, not just
ARRL. ARRL should have had the Code in place long ago. However, it is
only recently that we have consulted more actively with our long-time,
highly competent corporate attorneys in Connecticut who are experts in
nonprofit corporation law and governance about things of this nature,
and been advised of the importance of adopting one. For example, one
motivation for adopting the Code of Conduct was to protect the staff
from inappropriate conduct by Board members. Another was to protect
the prerogatives of the Board, which acts collectively and not
individually. In recent years we have noted that certain ARRL Directors
and Vice Directors have taken unilateral actions that are beyond the
scope of their authority. Guidelines were suggested by our corporate
attorneys to remedy these instances and to protect the organization and
its members.

Each member of a nonprofit Board of Directors has a series of statutory
duties to the organization which collectively make up their overall
fiduciary obligation. The current ARRL Board has had these obligations
explained to them in detail by our Connecticut attorneys. Those duties
are spelled out in detail in the Code of Conduct. So is the purpose of
the Code of Conduct. The advisability of having one for nonprofit
associations is beyond question. For example, the National Council of
Nonprofits states as follows:

“It’s useful to adopt a set of principles to guide a nonprofit
organization’s decision making and activities, as well as the behavior
of its employees, volunteers, and board members. These principles might
be called the nonprofit’s “statement of values” or “code of conduct,” or
something else. Honesty, integrity, transparency, confidentiality, and
equity are each examples of values that are typically expressed in a
charitable nonprofit’s code of ethics. The purpose of adopting such a
statement formally is to provide employees, volunteers, and board
members with guidelines for making ethical choices and to ensure that
there is accountability for those choices. When board members of a
charitable nonprofit adopt a code of ethics, they are expressing their
commitment to ethical behavior. Such a commitment goes a long way to
earning the public’s trust.”

ARRL has been briefed by our corporate attorneys on the importance of
good governance. It is important for several reasons, among which is the
fact that the Internal Revenue Service views good governance as a
cornerstone of tax compliance for nonprofit associations. The statutory
duties of directors of nonstock corporations are the duty of good faith;
the duty of care; and the duty of loyalty. I won’t explain each of
these in detail here, but these are statutory duties. They are not just
something that ARRL thinks is a good idea. The duty of loyalty requires
generally that a director must act in the best interests of the
corporation. It includes confidentiality obligations and it includes the
obligation to not denigrate the processes of the Board of Directors,
which operates collectively and not individually. You probably know all
of this already, but bear with me. In any case, the requirements are
just basic good sense.

There is a balance to be drawn between transparency with ARRL members
about actions that ARRL is taking on their behalf (and for their
benefit), and the need for confidentiality to protect ongoing advocacy
efforts, confidential business interests and privacy interests of
employees, etc. ARRL has always, to the greatest extent possible, erred
on the side of transparency and continue to do so. However, as the Code
of Conduct states, “maintaining the confidentiality of the Board’s
deliberations…is essential to having full and frank discussions
necessary for effective policymaking.”

The language for the Code of Conduct, which stemmed from advice from our
Connecticut corporate attorneys, is very similar to that found in other
nonprofit membership association codes of conduct. It is neither over
inclusive nor overbearing. And most importantly, it is absolutely not
censorship. Nor, as several have mistakenly asserted, does the Code
shift the Directors’ “primary duty of loyalty from members to the
corporation.” The primary duty of loyalty of a director is always, as a
matter of law, to the organization. And it always has been. There has
never been any “shift” of loyalty. But fulfilling the duty of loyalty to
the organization doesn’t at all equate to an abandonment of the
representative capacity of a director relative to the members in the
division. It isn’t an “us or them” situation. Those who assert otherwise
should be ashamed of themselves for suggesting otherwise.

A basic precept of nonprofit boards is that individual directors are not
spokespersons for ARRL organizationally. ARRL has a communications
person on staff. It is not the proper role of individual directors to
speak for the organization or to publicly evaluate the wisdom of the
collective decisions of the Board. Individual directors can and do
regularly discuss policy issues affecting radio amateurs with members in
their own divisions and with each other. They are obligated to keep in
touch with members and to ascertain their interests and to represent
those interests diligently. They do that. All the time. Nothing has
changed in that respect since the Code of Conduct was adopted. The Board
is well-informed by staff and professionals that are retained to provide
briefings to them. But the deliberations are collegial, and some are of
necessity confidential. The Board may, acting collectively, revise the
Code of Conduct from time to time. But any such changes will be decided
on by the Board as a group. It is how ARRL, and all other nonprofit
boards, do business.

The Code, which was put on our web site when the Board adopted it a year
ago, states that a Board member “may and should solicit input from
ARRL members on policy matters being considered by the Board, and may
informally share with ARRL members the final actions taken and the
issues considered by the Board in reaching its decisions.”

Furthermore, a Director can make any personal observations he or she
wishes to make as long as they are identified as such and as long as
there is no mischaracterization or harsh criticism of the Board’s
collective decision:

“Except where so empowered or authorized, a Board member speaking
publicly to ARRL membership or in any other public forum must ensure
that his/her statements are clearly identified as personal opinions and
that he/she is not speaking on behalf of the ARRL in any official
capacity or expressing the views or positions of the ARRL or any other
ARRL Board Member. Even with such a disclaimer, a Board member may not
make any adverse or false characterization of Board decisions that might
bring the organization into disrepute.”

I can tell you without any hesitation that the Board members
historically have been, and the current Board is now made up of good,
diligent, hard-working volunteers worthy of the respect and gratitude of
all ARRL members. The current Board is no different than that which has
served the membership for so many years. There is no power play
conspiracy behind any of this and the biggest motivation as to the
changes are related to the study we ordered from our CT corporate
attorney. There are few things that we need to do to stay in compliance
with the law and that is what has motivated this revision of the
Articles of Association and By-Laws.

Again, please go to the Delta Division website http://www.arrldelta.org
to view the EC Articles of Association and By-Laws motions. There not
as drastic as what has been presented and they are subject to amending
during debate at the ARRL Board meeting January 19. Further, Central
Division Director Carlson, W9XA and I have a motion to amend the “Code
of Conduct” to clarify the ambiguities on some items related to a
Director’s ability to communicate openly with the membership of their
division. We must be clear and have no perception of limiting those
lines of communication in our governance policies. As usual, sanity
will regain control of the situation.

I hope this clears up a good part of the confusion. Vice Director
Hudgens and I have always been open in conveying information to you and
I have always stated my positions and solicited your advice. This has
happened during my travels about the Delta Division and I think the
motions recommended by the Executive Committee reflect a good portion of
this valuable member feedback. There are two items I could not get
included in these motions: for motion EC-4 Membership Dues we failed to
include the required 2/3 vote to change the dues, and in EC-5 Life
Member Bylaws I had to omit the edit setting an effective date to honor
exiting terms of sale. The Parliamentarian ruled these changes did not
fit the original form filed; however, friendly amendments to both will
be offered.

Now with this soon to be out of our way, let’s get back to making the
greatest of all hobbies and noble radio service greater than ever!